Legal Ethics Opinion 1386
Conflict--Attorney As Witness: Attorney Representing Spouse in
Action Against Lender and Loan Processor While Testifying on
Behalf of Client/Spouse
You have informed the Committee that your wife ("W") applied for
a low interest loan to purchase a home in her own name alone,
which loan was denied based on several objections of the lender
("D"), including the indication that credit would not be granted
on the terms and conditions requested by W since D refuses to
grant loans to a married person unless the person's spouse joins
on the application as co-borrower. You further indicate that
each reason stated on the denial, except for the reason regarding
co-borrowers, was addressed, explained, or corrected. D
re-reviewed the application and ultimately approved the loan upon
the condition that W's spouse join as co-borrower. Apparently,
that condition was satisfied, since you indicate that the loan
was granted. You point out that D's handling of the application
subjected it, and its loan processor ("D2"), to liability under
the (federal) Equal Credit Act and W has filed actions against D
and D2 in federal court. You indicate that W's action against D2
has been settled and will be dismissed.
You advise further that you were a party to conversations with an
employee of D during which the employee stated that D does not
grant loans to one spouse without the other as co-borrower.
Thus, you indicate that it appears possible that it would be in
W's interest to have you testify or that D may call you as a
witness in the case. However, you have informed the Committee
that you and W have contacted approximately a dozen lawyers in an
attempt to secure representation for W. Each has refused to
accept representation for a variety of reasons: some have
conflicts because of having worked with or for either D or the
loan processor ("D2"); others indicated it was outside their area
of practice; and still others indicated that it was not
economically viable to accept representation.
You have asked the Committee to opine as to whether the lack of
available alternative representation constitutes a substantial
hardship so as to permit you to both represent W and testify as
to your conversation with D's employee.
The appropriate and controlling disciplinary rule is DR 5-l02(B)
which mandates, in pertinent part, that a lawyer shall not accept
employment in contemplated or pending litigation if he knows or
it is obvious that he ought to be called as a witness, except if,
among other circumstances, refusal would work a substantial
hardship on the client because of the distinctive value of the
lawyer as counsel in the particular case. The rationale
underlying the preclusion of an attorney serving as witness is
described in Ethical Consideration 5-9 which finds that "the
roles of an advocate and of a witness are inconsistent; the
function of an advocate is to advance or argue the cause of
another, while that of a witness is to state facts objectively."
Various procedural safeguards designed to provide a full and fair
hearing become threatened when the attorney also serves as
witness: the lawyer-witness may not be excluded from the
courtroom as other witnesses; the usual course of direct and
cross-examination cannot be carried out; and the lawyer-witness
is in the unique position of having to argue his own credibility.
See, e.g., Cottonwood Estates, Inc. v. Paradise Builders, Inc.,
624 P.2d 296, 300 (Ariz. l98l).
Further guidance is available through EC 5-l0 which states that,
in making a decision as to whether to continue representation
when the lawyer is to be a witness, the lawyer should determine
the personal or financial sacrifice of the client that
may result from his refusal of employment...the
materiality of his testimony, and the effectiveness of
his representation in view of his personal involvement.
In weighing these factors, it should be clear that
refusal...will impose an unreasonable hardship upon the
client before the lawyer accepts...the employment.
The Committee is of the opinion that the plain language of the
exception cited in DR 5-l0l(B)(3), permitting the lawyer to act
as both advocate and witness if the lawyer's refusal of
representation would "work a substantial hardship on the client",
requires that the hardship so created be specifically related to
the distinctive value of the lawyer as counsel in the particular
case. See In re Lathen, 654 P.2d lll0, lll4 (Or. l982); see alsoFederated Adjustment Company, Inc. v. Sobie, 455 N.Y.S.2d 820,
822 (l982).
From the facts you have stated, the committee is without
sufficient information regarding the reasons that the attorneys
approached declined to accept representation. Therefore, the
committee cannot determine that there is any distinctive value to
your serving as both witness and advocate for your wife so as to
constitute a substantial hardship. Thus, in these specific
circumstances, the apparent lack of available alternative
representation is not sufficient to permit you to serve as both
attorney and witness.
Committee Opinion
January 14, 1991